A legal minefield: ‘Difficult’ client instructions
BY JEN MCMILLAN – JUL 07, 2023 8:30 AM AEST
Snapshot
- When your client’s instructions seem unreasonable, it is important to give robust advice and to document that advice.
- If the client persists in their instructions, notwithstanding legal advice to the contrary, you may need to consider whether to continue to act.
- In the context of will instructions, a lawyer’s duty is to prepare a will in accordance with the client’s instructions, even if they are contrary to the lawyer’s advice.
In a litigation context, lawyers are conditioned to manage client expectations and steer them towards reasonable outcomes. Under Schedule 2 of the Legal Profession Uniform Law Application Act 2014, a law practice must not provide legal services on a claim or defence of a claim for damages unless a responsible legal practitioner reasonably believes on the basis of provable facts and a reasonable arguable view of the law that the claim or the defence has reasonable prospects of success. Away from litigation, however, there can be more scope to spill over the boundaries of reasonableness, especially in transactional work where your client is in a strong bargaining position.
Recent judicial consideration
What about in the context of making a will? What if your client wants to do something that seems unworkable, unwise or impossible? These questions are explored in the decision of Talbot & Ors v Boyd Legal (A Firm) & Ors [2023] QSC 8 (currently under appeal), which concerned the will and estate of Kenneth Talbot, a successful and very wealthy mining entrepreneur, who died in a plane crash in the Republic of Congo in 2010.
Mr Boyd was a solicitor with many years’ experience who had undertaken legal work for Mr Talbot from time to time since 1995. In late 2000, Mr Talbot asked Mr Boyd to prepare a will based on instructions he set out on a cassette tape. The transcript of that tape revealed Mr Talbot had very firm views about how to protect his beneficiaries from the perils of wealth. Although he was domiciled in Queensland, he directed that no copy of his will was to be available in Australia, no copy of the will was to be available in writing or in electronic form to any beneficiary and the will was to be administered overseas. He wanted to appoint Mr Bret, a businessman from Texas, as his sole executor subject to the directions of two ‘international friends’, one of whom was the Managing Director of Banque Nationale de Paris.
Mr Boyd advised Mr Talbot that his desire to keep the will private and confidential was not achievable as there would need to be a grant of probate in Queensland. He recommended against an offshore administration and advised Mr Talbot that it would be preferable to have more than one executor and, ideally, an executor located in Australia. He raised concerns about the concept of ‘international friends’ and suggested that a better option might be to appoint them as executors or appointors with the ability to remove the trustee. Mr Boyd was singularly unsuccessful in persuading Mr Talbot to change his mind. A will incorporating Mr Talbot’s instructions was executed on 29 November 2002.
Mr Talbot’s widow was unhappy with Mr Bret’s administration of the estate and he was paid $9 million from the estate as consideration for retiring as executor. Mr Talbot’s widow brought proceedings against Mr Boyd asserting, among other things, that he had been negligent in drafting the 2002 will and in failing to appropriately advise Mr Talbot as to its terms. Specifically, she claimed he had been negligent in the appointment of the executor and in failing to include a provision for the removal of a trustee.
Boddice J of the Queensland Supreme Court accepted that the 2002 will was structured to comply with Mr Talbot’s instructions, with which he persisted, notwithstanding the various concerns raised by Mr Boyd. His Honour stated (at [799]):
‘Whilst the terms of that Will were unusual, it is not the duty of a solicitor to refuse to prepare a Will simply because it contains difficult and unusual terms.’
In finding that Mr Boyd’s conduct in advising the deceased and in preparing the 2002 will was consistent with the standard of a reasonably competent practitioner, Boddice J cited Badenach v Calvert (2016) 257 CLR 440, and confirmed (at [908]):
‘There is no duty on an estate practitioner to insist a testator make a different Will. The duty is to use reasonable care and skill in giving effect to the client’s testamentary intentions…. (A) solicitor drawing a Will is obliged to follow the client’s instructions.’
Takeaways
As always, clear communication with the client is key. Faced with instructions to do something that seems unwise or unreasonable, lawyers should provide robust advice to the client and keep a record of the advice given. If the client persists in their instructions notwithstanding that advice, then the lawyer is in a difficult position, but not one that is impossible to navigate. The lawyer may decline to act and, depending on the nature of the instructions, may not be able to act if, for example, the client wants to pursue a claim for damages where the lawyer does not believe there are reasonable prospects of success. Where the instructions are in relation to the making of a will, however, the lawyer can confidently prepare a will in accordance with the client’s instructions, even if that means including provisions contrary to the lawyer’s advice.
This article originally appeared on lsj.com.au